Tag: Governor Whitmer

Cleaner Energy = Cleaner Water

 

The Michigan legislature is poised to require that 100 percent of electric power come from carbon-free sources by 2035, in what would be among the most comprehensive clean energy initiatives in the country. The ambitious legislative agenda, fulfilling Governor Whitmer’s MI Healthy Climate Plan, would also increase energy efficiency standards, address energy equity in disadvantaged communities, and empower the Michigan Public Service Commission to consider climate change, affordability, and equity in its decision-making. The passage of the bills would save Michigan ratepayers an estimated $5.5 billion through 2050

These benefits to Michigan are on top of the energy investments flowing from the federal Inflation Reduction Act that have catalyzed an estimated over $21 billion in new investment in Michigan, helped create almost 16,000 good-paying clean energy jobs, and brought 24 major new clean energy manufacturing projects to Michigan – more than any other state.

But these are not the only measurable benefits that the energy transition brings to Michigan. As we celebrate Michigan’s newfound leadership in clean energy, it’s vitally important to underscore the positive impact the energy transition will have on Michigan’s water resources.

Decarbonizing Michigan’s Economy Will Dramatically Improve Water Quality

Governor Whitmer’s MI Healthy Climate Plan will not only accelerate Michigan’s clean energy transition and decarbonize our economy, it will provide long-term benefits to Michigan’s water resources.

As we retire fossil fuel-based energy sources and replace them with clean energy technologies – wind and solar power, green hydrogen, electric vehicles, and energy storage devices – we will markedly and measurably reduce the harmful impacts that producing and burning fossil fuels have on our Great Lakes, rivers and streams, and groundwater. 

Unlike fossil fuels which are finite, costly, inherently dirty, and cause billions of dollars of negative environmental and health impacts, wind and solar energy are free, clean, and are almost without harmful impacts to the environment and human health.

Impacts from Thermoelectric Generation

Water and energy have always been highly interdependent. Producing power uses tremendous amounts of water. From the first water wheels used to ground grain 6,000 years ago, through the Roman age of invention where water was moved great distances to irrigate crops and provide drinking water, to the production of energy from hydropower, fossil-fuel, and nuclear power plants, water has always been an essential component of energy production.

Electricity generated by steam from burning coal or natural gas, and nuclear fission – called thermoelectric generation – accounts for 67 percent of water use in the Great Lakes Region, and 74 percent of all water use in Michigan. Thermoelectric generation causes significant, harmful, and destructive direct impacts on our water resources. 

Power plants need massive amounts of cooling water to operate. Water pumped from the Great Lakes and their tributary rivers “entrains” or kills millions of fish and aquatic organisms, including early-life-stage fish, eggs, and larvae. Once heated, water released from power plants causes thermal impacts that stress and kill fish and other aquatic organisms. Warm water also can change fish populations, decrease dissolved oxygen levels, propagate algae, and alter “benthic communities” – the broad ecological biome of animals (including crustaceans and mussels), plants, and bacteria that live in the water and the lake bottom.

Impacts from Coal

Michigan’s coal plants are also responsible for the widespread pollution of our Great Lakes. Available data show that Michigan-based coal-fired plants emit approximately 3000 lbs. of mercury (a powerful neurotoxin) every year.. Coal plants are responsible for 57 percent of all mercury present in the Great Lakes, resulting in  official health advisories cautioning the public to limit consumption of Great Lakes fish. In 2016 alone, thermoelectric power plants in Michigan also emitted 101,950 tons of sulfur dioxide, 57,819 tons of nitrogen oxide, and 58,644,000 metric tons of carbon dioxide.

In addition to these contaminants, coal combustion produces air emissions that contain lead, particulates, and various other heavy metals that are deposited in our lakes, rivers , and streams. Coal combustion also produces fly ash and slag, which have been deposited in unlined landfills for many decades. Recent research has revealed that of the 52 known coal ash landfills in Michigan, almost all are leaking heavy metals into Michigan’s groundwater. 

Mining coal also consumes huge amounts of water In 2021, 50 to 59 gallons of water were used for each of the 577 million tons of coal mined.

Impacts from Oil and Gas 

There are more than 900,000 active oil and gas wells in the United States. Oil and gas production from shale formations uses 1.5 to 16 million gallons of water for each well. This water becomes contaminated with a variety of chemicals and oil and gas constituents.

Oil and gas produced from shale formations require “hydraulic fracturing,” a process using large volumes of water, chemicals, and sand pumped under high pressure to keep pore spaces open so that oil and gas can be recovered. The drilling process yields contaminated “flow-back” water, as well as naturally occurring brine that is pumped out with the oil and gas. This chemical laden water is then disposed of by pumping it back deep underground. 

Burning natural gas produces emissions that include nitrogen oxides, carbon monoxide, carbon dioxide, methane, nitrous oxide, volatile organic compounds, and particulate matter – all of which inevitably find their way into Michigan’s surface waters.

Pipelines transport crude oil and gas to refineries, and refined oil and gas to their end use. Between 1998 and 2017 there were 11,758 pipeline spills in the United States that were classified as “significant” by the Pipeline and Hazardous Materials Safety Administration.

Included among them is the most catastrophic pipeline failure in United States history. The Enbridge pipeline rupture near Marshall, Michigan in July 2010, released more than 1 million gallons of tar sands oil into a direct tributary of the Kalamazoo River. The rupture of Enbridge’s Line 6B resulted in pervasive contamination and massive ecological damage to the waters and surrounding wetlands. 

Another oil pipeline now threatens the world’s most valuable fresh surface water system. The 70-year-old Line 5, also owned and operated by Enbridge, traverses the Straits of Mackinac at the confluence of Lakes Michigan and Huron. The free spanning underwater pipeline has been repeatedly struck by ship’s anchors and cables dragged by passing vessels have damaged the pipeline and its supports. Line 5 is uniquely vulnerable to multiple impacts that could result in irreversible environmental harm and billions of dollars of damage to the Great Lakes regional economy.

Climate Change and Michigan Waters 

We are only beginning to understand the pervasive impact climate change is having on our lakes, rivers, and other water-dependent resources. Climate change brings specific climate related impacts, risks, and challenges to the protection and management of public water resources.

The combustion of fossil fuels has raised regional temperatures 2.3 degrees since 1951. Warming temperatures destabilize lake, river, and stream ecology, altering conditions and habitat for fish and aquatic organisms. Like the oceans, the Great Lakes are absorbing excess heat. Lake Superior, despite its size, is one of the fastest warming lakes in the world with temperatures increasing 3-4 degrees fahrenheit.

Warming temperatures are changing our weather. The National Climate Assessment forecasts both increased frequency and severity of storm events in the Great Lakes region. Increased flooding will cause sewer overflows that reach our Great Lakes; increased soil erosion; and more fertilizer, pesticides, and herbicides washing into our streams and rivers.

The Energy/Water Nexus. 

We can mitigate or even potentially avoid the most severe effects of climate change by implementing Governor Whitmer’s energy and climate plans. The transition from fossil fuels to clean energy cannot come soon enough. 

The benefits of the proposed energy transition to our water resources are not speculative, they are measurable and based in science. Wind and solar energy are now the cheapest new energy infrastructure available worldwide. Every megawatt-hour of wind and solar energy saves 8,240 gallons of water from being used for themal cooling.

An acre of solar panels producing electricity keeps 121 to 138 metric tons of carbon dioxide out of the atmosphere, every year.  That same acre of solar panels can power an electric vehicle 40 to 100 times farther than ethanol produced from the same acre of corn. And ethanol production can require up to 865 gallons of water for each gallon of fuel produced. 

The benefits of clean energy, significant as they are, pale when compared to the harms that clean energy can help us avoid. The economics of clean energy do not include the difficult to quantify but very real aggregate cost of “negative externalities” – the harmful environmental and health impacts that flow from the use of fossil fuels. 

Annual environmental and health damages linked to coal mining, processing, and combustion have been estimated at $345 billion annually (2010 dollars). The annual environmental and health damages from burning fossil fuels has been estimated at up to $970 billion annually.

Globally, the International Monetary Fund (IMF) estimates that pollution from fossil fuels cost the world’s economy more than $5.6 trillion in 2022. This amount, when added to the cost of fossil fuels, is roughly equivalent to total annual global energy expenditures. The favorable economics of clean energy technologies are undeniable. There is an overwhelming and compelling basis to transition from fossil fuels as quickly as possible.

Governor Whitmer’s clean energy and climate initiatives redound with multiple benefits to public health, the environment, the business community, and Michigan citizens at large.  And thanks to the Governor’s policies that are being advanced today, the largest, most extraordinary fresh surface water system in the world – our Great Lakes – will also enjoy long-term future benefits and be preserved and protected for our future generations.

Governor Whitmer’s Budget Proposes Major New Funding for Water Priorities

Whitmer budget presentation

The budget proposal announced by Governor Whitmer on February 8 contains hundreds of millions of dollars in new and increased funding for vital water needs and is an encouraging sign as the new legislative session gets into full swing.

Whitmer’s budget for the fiscal year that begins next October 1 includes the following items:

  • $280.5 million for local wastewater and drinking water infrastructure;
  • $226 million to remove and replace 40,000 lead service lines over the next 10 years;
  • $122.5 million to ensure the quality of drinking water through water filter distribution, and faucet and plumbing replacement in residences with lead pipes;
  • $100 million to establish an environmental justice contamination cleanup and redevelopment fund for sites in underrepresented and underserved communities. The Governor says the initiative will also expand air pollution controls in historically disadvantaged and underrepresented communities. “This funding will begin the process of rectifying environmental injustice,” the budget says.
  • $25 million for the removal of dams, allowing natural flow of rivers and preventing catastrophic dam failures.
  • $23.8 million to conduct studies and collect data on Michigan’s groundwater resources.
  • $7 million for a new, interactive groundwater database.

FLOW is reacting positively to the Governor’s proposal.  “Whitmer’s budget reflects her Administration’s continued commitment to securing safe, affordable drinking water for all,” said Liz Kirkwood, FLOW’s Executive Director.  

Kirkwood said the Governor’s groundwater funding proposals are welcome. Groundwater protection is a FLOW priority. “We applaud the Administration’s commitment to investing in groundwater management and protection. For too long, Michigan has ignored the vital role of groundwater in protecting our drinking water and the ecological health of rivers, lakes, streams, and wetlands.

“Moving forward,” Kirkwood continued, “FLOW will work to ensure decision-makers scale up long-term investments in our water infrastructure with affordable rates, groundwater management and protection, and climate and community resiliency.” 

In a separate bill already signed by the Governor, the Michigan Legislature approved $25 million to establish a water affordability program that would prevent the shutoff of water services to residential customers struggling to pay their water service bills. While the fund lands well short of the need, its establishment is an encouraging sign that the Governor and Legislature understand water service is essential to all Michiganders.

Governor Whitmer Has Opportunity to Lead on the Environment

Photo: Michigan Gov. Gretchen Whitmer on Nov. 9, 2021, joined by Benton Harbor Mayor Marcus Muhammad and construction workers, visited the Benton Harbor site where the first lead service lines were being replaced after her expedited commitment to replace 100% of those lines in the city in 18 months.

As she begins her fourth year in office, Governor Whitmer has an opportunity to build on past environmental successes and set the tone for an historic year of accomplishment. Thanks to significant federal COVID-relief aid and a state economy performing better than forecast, Michigan has a rare abundance of funding to attack the state’s multibillion-dollar backlog of sewer, storm, and drinking water infrastructure needs and attend to other urgent environmental needs. Here are a few ways she can strengthen public health protections and restore our environment.

Declare “The Year of Water”: Setting the stage for an unprecedented year of action on water, the governor should declare 2022 “The Year of Water” for state government. The agenda for the Year of Water approach should be governed by two core principles: 

(1) all Michiganders have a paramount fundamental public interest and right to safe, clean, and affordable water under Art. 4, Section 51 and 52 of the State Constitution; and

(2) Michiganders should expect their government to uphold its solemn public trust duty to protect state waters.

Create a “Clean Water Trust Fund”: A one-time investment in sewage and drinking water systems is not enough to assure clean, safe, affordable, and accountability when it comes to the rights of citizens to Michigan’s public water. A Clean Water Trust Fund, established by statute or state constitutional amendment, would provide a long-term answer for cities and rural communities. Modeled in part after Michigan’s constitutionally protected Natural Resources Trust Fund, which dedicates a portion of state oil and gas revenue to the purchase of recreational and ecologically important land for the public, a Clean Water Trust Fund would be one of the first of its kind in the nation.

End Water service shutoffs: The pandemic has underscored the danger to human health of cutting off water service to households unable to pay their bills. Water is essential to personal health, sanitation, and dignity. Governor Whitmer took action to assure water service to thousands of households early in the pandemic. This policy should be made permanent, with funding and the trust fund oversight required to back it up. 

Remove all lead service lines and lead household connections in drinking water systems: The crises in Flint and Benton Harbor have made it clear that lead in drinking water is a major public health risk, especially to our most vulnerable Michiganders—children. The governor should set a goal of replacing all lead service lines and household connections statewide within the next five years.

Aggressively tackle threats posed by PFAS “forever chemicals”: With part of the federal relief funding, the governor should propose a three-year plan to clean up orphan PFAS contamination sites where no private polluter can be identified and should call for the legislature to restore Michigan’s polluter pay law to hold accountable those who have contaminated Michigan’s land and waters. Further, she should pledge state government leadership in promoting alternatives to PFAS in products and manufacturing and firefighting.

Developing a plan to prevent further microplastics contamination of Michigan’s waters—including the water we drink: In the United States, we ingest the equivalent of one credit card a week in plastic. Tiny breakdown particles from plastics use and disposal are an environmental and public health risk. The governor should convene a working group to come up with solutions that take effect at the earliest possible time.

Continue to protect and sustain Michigan’s Great Lakes and water resources from the effects of climate change: The governor launched an integrative approach to the Great Lakes, water resources, environment and energy in MI Healthy Climate Plan. To address the devastating effects of climate change, the state must accelerate and lead this effort by building resilient green infrastructure, identifying and improving protection of floodplains and wetlands, and promoting renewable and efficient energy and services, such as net-zero carbon buildings.

The year 2022 is a chance for the governor to secure her Great Lakes, environmental, energy, and climate legacy, and to make the Year of Water a turning point for the better in Michigan’s history.

Remember When Line 5 Shut Down a Year Ago, and None of Enbridge’s Doomsaying Came True?

Dire Straits: A damaged portion of Line 5 in the Straits of Mackinac shown in this June 2020 photo provided to the State of Michigan by Enbridge.

By Nora Baty

Nora Baty is a Milliken Law and Policy Intern at FLOW and a 3rd-year law student at the University of Michigan.

Do you remember the last time Line 5 shut down? This week marks the one-year anniversary of Line 5’s closure following significant damage to an anchor support likely caused by an Enbridge-contracted vessel.

Research conducted by former Dow Chemical engineer Gary Street found that in August 2020, after more than 50 days with at least one leg of Line 5 closed due to damage from a cable strike, gasoline prices and supply were unaffected in Michigan and Canada. While gasoline consumption during the pandemic was down from previous years in August 2020, the finding is consistent with a 2018 independent analysis. That study found that shutting down Line 5 was unlikely to significantly impact consumer prices at the pump, with a forecasted increase of less than one cent per gallon, and that Michigan’s energy needs could be met without Line 5. (See also, “Fact Check: When Line 5 Shuts Down, Detroit Jets Will Still Fly and Union Refinery Jobs Will Still Exist”).

Enbridge continues to operate Line 5 in direct violation of Governor Gretchen Whitmer’s lawful shutdown order, with the Canadian pipeline company claiming that “shutting down Line 5 even temporarily, would have immediate and severe consequences on the economies of Michigan, Ohio, Ontario, and elsewhere.” 

Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to FLOW’s experts. As the energy landscape shifts with the slowdown of oil and gas production, the adoption of electric vehicles, and accelerating commitments to cut greenhouse gas emissions, Enbridge continues to operate the 68-year-old Line 5 pipelines in defiance of the law. Operating in the open waters of the Straits of Mackinac since 1953, Line 5 endangers 20% of the planet’s and 84% of North America’s surface fresh water, risks devastation of coastal communities, and threatens to cause billions of dollars of damages to the environment and local and regional economies, while Enbridge continues refusing to provide financial assurances for the consequences of a spill. 

Enbridge Line 6B’s 2010 spill into the Kalamazoo River near Marshall, Michigan

Line 5 is a ticking time bomb in the Straits that threatens more jobs than it sustains. Line 5 has failed at least 33 times since 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. Some 3 miles of the pipeline are elevated off the public bottomlands with supports meant to shore up the decaying infrastructure in fierce currents that scour the lakebed. The change in structural design has exposed the pipeline to strikes by anchors and cables, and poses an extreme navigational hazard in a busy shipping channel. (See also, “Key Facts: Line 5 and the Proposed Oil Tunnel“). 

Pervasive organizational failures at Enbridge” caused one of the nation’s largest inland oil spills in July 2010 when its Line 6B pipeline burst near Marshall, Michigan, and for 17 hours dumped 1.2 million gallons of heavy tar sands oil into the Kalamazoo River watershed. It took four years and over $1.2 billion to clean it up to the extent possible. 

Enbridge Line 6B was 41 years old when it failed; Enbridge Line 5 is 68 years old and counting.

FLOW Praises Gov. Whitmer for Upholding Public Trust Law on Line 5 by Revoking and Terminating Easement

paddleboarders protesting

Today’s announcement by Governor Whitmer and Department of Natural Resources (DNR) Director Eichinger that the State of Michigan, under the public trust doctrine, is revoking and terminating the 1953 easement allowing Enbridge to operate dual pipelines in the Straits of Mackinac—due to repeated violations of the easement—represents a clear victory for the Great Lakes and the citizens and tribes of Michigan, said FLOW executive director Liz Kirkwood today.

“As public trustees of our waters, the State of Michigan is affirmatively upholding the rule of law and protecting the public’s treasured Great Lakes from the clear and present danger of an oil spill catastrophe from Enbridge’s Line 5 pipeline.”

“This is an historic day of state leadership by the Whitmer administration brought about by many years of dedicated action by environmental groups, Indian tribes, communities, businesses, faith communities, families, and individuals. People of diverse backgrounds have come together to work tirelessly on a common purpose—protecting the Great Lakes, drinking water, fishing rights, the economy, coastal communities, and a way of life from the most dangerous oil pipeline in America.

“While this is a moment to celebrate, we must remain vigilant until the oil stops flowing for good in May 2021 because Line 5 remains exposed to uncontrollable and powerful forces, including exceptionally strong currents, lakebed scouring, new anchor and cable strikes, and corrosion. These forces dramatically increase the risk of this elevated, outdated pipeline collapsing and causing the unthinkable: a catastrophic oil spill in the heart of the Great Lakes.”

Since 2013, FLOW has filed extensive legal and technical reports with the State of Michigan, including most recently in November 2019, citing extensive evidence of Enbridge operating Line 5 illegally and risking the public’s water. For more information, see FLOW’s original news archive.

To view the State of Michigan documents relating to today’s announcement, click the links below:

Gov. Whitmer’s Proposed Investments a Step Forward in Solving Michigan’s Water Infrastructure Crisis

Janet Meissner Pritchard is FLOW’s Interim Legal Director

By Janet Meissner Pritchard

On October 1, Gov. Gretchen Whitmer announced $500 million in investments in clean water that she designed to be a significant step forward in solving Michigan’s inequitable, unsustainable water infrastructure crisis. 

The new investment package will provide grants for much-needed water infrastructure projects such as replacing lead service lines, addressing failing or inadequate wastewater infrastructure that contributes to violations of water quality standards, and increasing green infrastructure to reduce risk of flooding and other wet weather impacts that can lead to water quality problems. 

Three features of this investment package are particularly welcome. First, the bulk of the new investments ($417 million) will be made as grants, rather than loans, to fund water infrastructure projects, and a substantial portion of these grant funds will be directed to disadvantaged communities. This is important because the severe decline in federal and state grants for water infrastructure since the late 1970s has led to an overreliance on water ratepayers to repay bonds and loans used to finance much-needed infrastructure projects, resulting in soaring water rates that are unaffordable for households struggling to make ends meet.

Second, Gov. Whitmer’s funding package includes $7.5 million to develop affordable water rates and other affordability programs. Implementing affordable rate structures, such as income-based rates, and other affordability programs, will further relieve the burden on struggling rate payers, greatly reduce the likelihood of household water shutoffs, and ensure more reliable revenues for water utilities. Third, the package also includes $35 million to address failing septic systems, which are contaminating rivers, lakes, groundwater, and private wells in some communities across Michigan.

Status Quo Is Inequitable and Unsustainable

During the 20th century, small and large cities and towns across Michigan and the United States benefited from extensive federal investments in public water systems. Today, local taxpayers and ratepayers bear the burden of assessing, operating, maintaining, and financing water infrastructure with far fewer state and federal subsidies. This overreliance on ratepayers compounds existing inequities. The inability of vulnerable communities to pay for much-needed infrastructure maintenance and upgrades means their needs remain unmet, subjecting these already-vulnerable communities to greater risks of water insecurity and related health, social, and economic impacts.

Overreliance on ratepayers is also unsustainable, not only for households, but also for water utilities that are forced to increase water rates to pay for water infrastructure projects. Water rates might still be manageable for a majority of ratepayers today, but rates are expected to increase sharply, driven in large part by the need to maintain and upgrade neglected water infrastructure. In 2018, the American Association of Civil Engineers gave Michigan a D+ rating for the state of its water infrastructure. Michigan’s 21st Century Infrastructure Commission determined in 2016 that an additional $800 million is needed annually to make the state’s water infrastructure fit for the 21st century, and this estimate did not account for emerging threats to water quality such as PFAS. 

Under a business-as-usual trajectory, in which these infrastructure costs are placed on ratepayers, water prices in Michigan and nationally are expected to skyrocket to four times current levels over the next few decades.​​ If water rates rise at projected levels, conservative projections estimate that nationally over 35% of American households will face water bills requiring them to pay more than 4.5% of their household income for water and sanitation, the threshold beyond which water-and-sewer service becomes unaffordable, per the U.S. Environmental Protection Agency, although some analysts set that affordability limit at a much lower 2% of household income. Michigan ranks 12th in the nation for the number of census tracts at high risk for unaffordable water bills by 2023.

For many years, water affordability and justice advocates such as the People’s Water Board Coalition and We the People of Detroit have been urging utilities to adopt affordable water rates and other programs to make water bills affordable for families struggling to make ends meet. Since 2014, more than 140,000 Michigan households have had their water shut off due to inability to pay unaffordable water bills. The $7.5 million made available under Gov. Whitmer’s initiative to communities to develop sustainable water rate plans and implement pilot affordability plans within their communities are a long-overdue, initial response to these demands. To create the systemic change needed and to fully address the affordability crisis, more resources will be needed and frontline communities must be involved in the design and implementation of affordability plans.

Needs of Rural Residents Also Addressed

While 70% of Michigan’s population relies on a community system to handle wastewater from their homes, the remaining population relies on residential septic systems. As highlighted at FLOW’s 2019 Michigan Septic Summit, failing septic systems can lead to both public health and environmental risks. But the cost of replacing failing septic systems can be overwhelming for individual homeowners and small rural communities. To make these costs more manageable, Gov. Whitmer’s investment package includes $35 million to establish a low-interest revolving loan program for  homeowners and communities to replace or eliminate failing septic systems that are impacting Michigan’s water resources.

While $500 million for water infrastructure is a significant sum, even more is needed to address Michigan’s mounting annual funding gap. The investments recently announced by Gov. Whitmer also indicate a welcome shift in approach to how Michigan pays for water infrastructure—providing more grant funds, addressing affordability concerns, and extending support to homeowners and rural communities to address failing septic systems. his shift, however, needs to be reinforced and furthered too. 

Michigan lawmakers and water utilities need to join Gov. Whitmer and water justice advocates to relieve pressure on struggling ratepayers, especially in communities facing economic hardship. We need to rebuild our water infrastructure using revenue sources that are more substantial, more equitable, and more sustainable to ensure safe, clean, and affordable water for all in Michigan.

The Milliken Legacy: More than Nostalgia

Governor Milliken’s official portrait graced the cover of his public memorial service at the Interlochen Center for the Arts on August 6.

By Dave Dempsey

In the flurry of news coverage about last week’s memorial service for the late Governor William Milliken, there was plenty of talk of days gone by. The Governor left office 37 years ago, and it sometimes seems as though moderation, civility and environmental ethics left office with him.

But focusing on that would be the wrong takeaway. The Milliken example is a model for today, not a relic of yesterday.

All five speakers at the service, including Milliken’s longtime advisor Bill Rustem and Governor Gretchen Whitmer, struck the right note—a celebration rather than a sad farewell.

FLOW has contributed plenty to the the conversation—in our blog coverage, in our Milliken video testimonials, and in the news media—about the Milliken environmental legacy, including the Michigan Environmental Protection Act. The Governor happened to serve at a time when public consciousness of the need for environmental reforms was peaking, and the man and the times together contributed to our state’s advancement.

Public consciousness is again growing of the need to stabilize our climate, protect fresh water, and conserve vital habitat. But we cannot wait for another Milliken or Teddy Roosevelt to convert that consciousness into positive change.

Instead, it is time for us to lead—and the political so-called leaders will follow. I think Governor Milliken would approve of renewed citizen activism to meet the challenges of our time.

New Michigan Standards for Toxic PFAS in Drinking Water among Most Protective in the U.S.

Dave Dempsey, Senior Advisor

By Dave Dempsey

New, enforceable state drinking water standards to protect public health from seven toxic compounds will take effect early this month.

“Michigan is once again leading the way nationally in fighting PFAS contamination by setting our own science-based drinking water standard,” Michigan Gov. Gretchen Whitmer said.

Called for by Gov. Whitmer last year, the standards set maximum limits for the seven PFAS compounds. Known as “forever chemicals” because they break down slowly in the environment, PFAS have emerged as a national issue as more and more contamination sites are found. Two of the most serious hotspots in Michigan are sites associated with Wolverine Worldwide in Kent County and the former Wurthsmith Air Force Base in Iosco County.

“It is imperative for Michigan to promulgate the proposed rules as soon as practicable,” said FLOW Executive Director Liz Kirkwood. “Testing continues to turn up new sites of PFAS contamination in Michigan, many of them exposing citizens to substantial health risks. Federal rules are likely years away and may not provide the level of protection that the people of Michigan want and need for public health and the environment.”

The standards apply to approximately 2,700 public drinking water supplies across the state and will be enforced by the state Department of Environment, Great Lakes, and Energy (EGLE). FLOW and other organizations have strongly supported the state standards in the absence of  binding, enforceable drinking water standards set by the U.S. Environmental Protection Agency.

PFAS have been used in thousands of applications globally, including firefighting foam, food packaging, non-stick coatings, stain and water repellents, and many other consumer products. PFAS compounds have been linked in scientific studies to:

  • Reducing a woman’s chance of getting pregnant
  • Increasing the chance of high blood pressure in pregnant women
  • Increasing the chance of thyroid disease
  • Increasing cholesterol levels
  • Changing immune response
  • Increasing the chance of cancer, especially kidney and testicular cancers.

“Governor Whitmer and EGLE deserve tremendous credit for taking this important first step in protecting Michigan residents from PFAS in their drinking water,” said Cyndi Roper, Michigan Senior Policy Advocate for the Natural Resources Defense Council. “Michigan is now regulating seven PFAS chemicals—which is more than any other state—and two of the standards are the nation’s most health protective. However, several of the new PFAS standards should have been more health protective based on the existing science.”

Roper added: “Further, even if we set standards for seven PFAS chemicals each year, it would take far too many generations to protect residents from the health impacts of these chemicals. Instead of playing regulatory whack-a-mole, Michigan should set a treatment technique that is most effective at cleaning up all known PFAS from drinking water.”

PFAS present a significant risk to human health. They break down slowly in the environment, can move quickly through the environment, and are associated with a wide array of harmful human health effects including cancer, immune system suppression, liver and kidney damage, and developmental and reproductive harm.

Michigan Citizens for Water Conservation Calls on Governor, EGLE Director to Withdraw Permit for Nestlé’s Water Grab

Peggy Case, MCWC

By Peggy Case, President, Michigan Citizens for Water Conservation

Rarely does a ruling by a state Administrative Law Judge overturn a permit issued by a state agency. In the contested case hearing on the Nestlé permit to withdraw more than 500,000 gallons of water per day from a White Pine Springs well near Evart, Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) had hoped the administrative law judge would reverse the former Snyder administration’s unwarranted permission for Nestlé’s permit.

But on April 24, the administrative law judge in the case before the Michigan Department of Environment, Great Lakes and Energy (EGLE) issued a proposal for decision that would uphold the permit, and recommended that Liesl Clark, Director of EGLE, render a final decision in Nestlé’s favor. Fortunately, the decision is only a proposal, and our attorneys have advised us that MCWC and the Grand Traverse Band have a right to file exceptions. So we are urging Director Clark and the Whitmer Administration to reject the footloose interpretation of Michigan’s water laws for Nestlé to sell another 210 million gallons of bottled water per year from the headwaters of our lakes and streams.

FLOW ACTION ALERT: Please take action now to write EGLE Director Liesl Clark, as well as Michigan Gov. Gretchen Whitmer, to urge them to uphold the law and their roles as trustees of our public water by rejecting the Nestlé permit once and for all.

The proposal from the judge is full of errors and interpretations and relies on a model based on assumptions, not actual calculations of the effects, that tipped the cup toward Nestlé. We intend to demonstrate these errors through the filing of exceptions as provided by law. We trust Director Clark and the administration will reject the permit, and follow the legal duty resting with EGLE to apply our water law standards strictly, the way they were intended.

This proceeding and case started with the Snyder Administration’s Department of Environmental Quality when it granted the permit in April 2018, despite compelling legal arguments and massive public opposition. Today, we have new leadership and a new Director at the helm of EGLE.

The Governor and Attorney General campaigned on a promise to change the way we do business in Michigan when it comes to protecting water resources and promoting water justice. Unfortunately, to date, the administration through EGLE and the Attorney General’s office has continued to defend the Nestlé permit and filed a brief asking to throw out our contested case and grant the permit. This is difficult to comprehend when we consider that in the spring of 2017, 600 people opposed to the permit drove or took buses from all over the state to attend the hearing. Citizens submitted more than 80,000 comments opposing that permit in the first place.

We know this Administration can do better in support of the voters, the water, and the damaged ecosystem in Osceola Township. It can do better than ignore the injustice in Flint where many households are still not assured of clean, affordable tap water. It can do better than give away another 210 million gallons of water a year to Nestlé while thousands of homes in Detroit still do not have running water.

In 2005, in relation to a lawsuit MCWC filed in Mecosta County in 2000, a Michigan appeals court upheld the science and law that 400 gallons per minute from a well in a Michigan glacial headwater spring, wetlands, or creek system causes substantial harm. The court did so because date before, during, and after pumping on the withdrawals and pumping rates showed a direct correlation of pumping at 200 to 400 gallons per minute and drops in flows and levels and serious impacts. But when the 2018 permit was issued, the data was lacking, and what data existed was not used to calculate effects but fed into a computer model targeted to find little harm.

By filing the exceptions and legal brief with the Director, we are urging her to conduct an independent review of the facts and loose interpretations, and overturn a permit that was based on twisting those facts and the law to favor private gain at the expense of our public water.

MCWC and the GTB ask the Whitmer administration, the Attorney General and Director Clark to return state government to respecting the paramount duty of our state leaders to protect our state’s water and live up to the public trust responsibilities granted by our State Constitution and water laws.

We expect the Attorney General and the Director of EGLE to take this opportunity, presented to them by our persistent work, to actually look at the record and the laws in question and do what is right for the people and our precious waters. We expect them to withdraw this permit for Nestlé’s water grab and direct their energies to repairing the injustices of lack of affordable water access in communities such as Detroit and Flint.

Note from FLOW: To support MCWC’s vital work to protect our public trust waters from privatization and commercialization, click here.

Onus is on State, Not Citizens, to Turn on Water in Detroit

Jim Olson is FLOW’s Founder, President, and Legal Advisor

Jim Olson spoke last week at Columbia University’s Lenfest Center for the Arts in a program titled “Water Activism: Detroit, Flint, and the Great Lakes”. Photo by Michael DiVito 

By Jim Olson

Several newspapers recently reported on another 23,000 water service shutoffs of residences in Detroit whose occupants cannot afford to pay their excessive water bills, bringing the total to well over 100,000 shutoffs since 2014. The city has forced shutoffs of residential water for drinking, cooking, bathing, and sanitation ostensibly to improve the balance sheet of Detroit during and after its municipal bankruptcy.

And there’s no end in sight.

Late last week, state of Michigan officials rejected a request from Detroit residents and the American Civil Liberties Union to declare an emergency and stop the water shutoffs on the grounds that residents couldn’t scientifically prove there was a public health threat or crisis.

Clearly water service to these customers should be restored immediately. Not only was the rejection wrong on moral grounds, it also should never have been the residents’ burden to prove life without water is a crisis.

Putting the onus on citizens to prove harm ignores the reality of a person’s inherent right to access the sovereign or public waters of the state for drinking water, sanitation or health, and sustenance. The waters delivered by the City of Detroit’s Water Board are withdrawn, treated, distributed, collected, treated as sewage, and returned to Lake Huron and the Detroit River. These navigable waters are public and subject to what is known as the Public Trust Doctrine.

Michigan, like every state, took title to the waters of the Great Lakes and soils beneath them, as sovereign and in public trust for the people, on admission to the Union in 1837. Under this Public Trust Doctrine, the State of Michigan and its officials have a solemn, perpetual duty to prevent impairment or interference with the right of the public to use these waters for certain protected public trust purposes. 

Under the Public Trust Doctrine, each citizen, as a legally recognized beneficiary under the decisions of the Michigan Supreme Court and U.S. Supreme Court, has a right to access these waters for navigation, fishing, sustenance, including drinking water and growing and preparing food, bathing (more accurately described as sanitation), and swimming. Before the City of Detroit established a public water supply system in the late 1800s and early 1900s, residents depended on groundwater, Lake St. Clair, or the Detroit River.

As the city grew, the public water supply system expanded. In order to assure the costs of this expanded system were covered, Michigan passed a law requiring residents and occupants of the service area to shut down existing private wells and hook up to the system and prevented them from exercising their property right to reasonable use of the groundwater or navigable waters.

But their fundamental right to access and use these public waters was not denied, nor could it be. The public rights to use these public trust waters for navigation, fishing, drinking, food, and sanitation are paramount and can never be repealed or impaired. Detroit, like other cities and towns, withdraws and delivers public water as a service through its municipal water supply system as a substitute system for the water residents once obtained through their reasonable use of groundwater.

The public trust water that enters and flows through, and is discharged back into, Lake Huron or the Detroit River does not lose its public trust status just because it enters a pipe. The pipe and every aspect of the public water system backed by citizen ratepayers and the full faith and credit of the state (bonds, taxes, and other revenues) remains subject to the Public Trust Doctrine.

Under the Public Trust Doctrine, not only does government have a legal duty to protect and provide access for these paramount public trust uses of residents and citizens, but the burden of proof is not on the residents of Detroit or citizens of Michigan for access to water for drinking, food, and sanitation. The burden is on the government, that is the trustees, or any other person or institution who seeks to deny or deprive a resident of these paramount public trust rights. The solemn duty was on the state and city officials, not the residents. And, it remains forever so.

Since when is the burden of proof on residents to prove a health crisis to get a drink of water from the tap in their home? By refusing to grant relief to tens of thousands of residents in Detroit, the state has effectively deprived citizens of their rights under public trust law.

Once we see and understand this situation is a matter of the public trust law, it can be understood that citizens don’t have to prove to the state under public health statutes that there is a public health emergency. Legally and morally, it is the other way around. State officials have a mandatory duty to provide access to these public trust waters for drinking, food, and health. As trustee of the waters of Lake Huron and the Detroit River, state officials have sovereign control and power to assure water is provided without risks of health to residents.

Bottom line: The state has a duty to turn the water back on.

To refuse to do so because of some narrow statutory interpretation under a public health law, rather than fulfill its duty under public trust law, perpetuates the emotional trauma, risks, turmoil, and discrimination thrust on residents who should be treated like every other citizen when it comes to our common public waters. If the state does not turn on the water through its overarching role as trustee of the public trust waters of the state, the public trust duty has been violated.

What we need to do as a state, and as a civilized society, is to recognize and affirm this public water, this Public Trust, and start acting differently.

First, turn the water back on and provide a necessary minimum amount of 7,000 gallons a month—like Santa Fe, New Mexico, does—at a low rate everyone can pay; increase rates on all who use more than this amount, and move residents off a rate system that spreads the cost on resident ratepayers. The current system is obsolete.

With the slashes in federal grant and low interest infrastructure funding, the need for billions in repairs of systems that have been allowed to deteriorate, new demands from climate change effects, and dwindling customer populations with wages that lock them in poverty, it is time we start with the reality that the waters of the state are public for all of us, and assure that we provide water services shared by everyone in Michigan.

Public water is not about the “bottom-line,” it is about serving the public with safe water for drinking, food and health under the Public Trust Doctrine.

In addition to moving off a purely ratepayer based system in each city or town in favor of a state-wide responsibility for all of us to assure access to public water, we should pass a version of FLOW’s Public Water, Public Justice model law, which we released in September 2018. This policy will shift the burden and create flexibility for water boards to set prices in tiers, authorize affordability plans, and assure a certain amount of water is provided to each citizen shared by all citizens.

Then, because all water in the state is public, not private, the free lunch or massive subsidy to bottled water companies must end. Presently, bottled water companies convert the use of water into a sale of water, with huge profits not shared by the citizens of Michigan. Some companies, like Dasani or Aquafina, receive the water by tapping into a municipal or public water supply system. Other companies like Nestlé simply set up a system of large-volume pumps and withdraw public water from groundwater or springs that feed our lakes and streams; these companies pay a nominal fee to process applications and administer permits that seek to regulate environmental impacts, but they pay nothing for the public water that garners them hundreds of millions of dollars in profits.

The profits of bottled water companies constitute a massive subsidy to a few private corporations directly off the backs of all other ratepayers, taxpayers, and citizens of Michigan.

Then start requiring bottled water companies to obtain a license. If we allow the sale of water at all, under stringent impact and accounting standards, these companies should pay a royalty or fee to sell, not just use, our public water. Those royalties should be placed in a trust fund for public water and social justice needs of our cities, towns, and villages, and provide an open, participatory, transparent, and accountable means to right this inequity by assisting communities and citizens with the most critical needs. After all, when it comes to our shared public water, we are all citizens of Detroit.